You cannot reject the Olympic medal? - Commentary on the CAS Abrahamian case.

• Author: Guo, Shuli

Introduction

Since the Atlanta Olympic Games in the USA in 1996, the International Council of Arbitration for Sport (ICAS) (1) has established its special tribunal in the Olympic host city, which is called the Court of Arbitration for Sport (CAS) Ad Hoc Division (AHD). This tribunal deals with any disputes involving the Olympic Games within ten days prior to the ceremony and during the entire Games themselves. (2) The AHD always follows the '3F' principle (fair, fast, free) and settles disputes concerning the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate, aiming at preserving neutrality and protecting parties' interests fairly. The ICAS also set up the AHD for the 2008 Beijing Olympic Games, operating from 31 July 2008 and eventually ruling on nine cases; six were considered relevant for eligibility, one involved a penalty for an official and the final two concerned disputes over competition results. (3) Here we would like to develop commentary on one of the resulting disputes concerning honour within the Olympic Games, applying some principles of sports law.

Case review Facts On 14 August 2008, the Men's Greco-Roman wrestling 84kg semifinal (Bout 112) (4) was held between the athlete Ara Abrahamian, a Swedish national, and the Italian wrestler, Andrea Minguzzi ('Minguzzi'). The Italian athlete won the first round of the bout, and the Swedish athlete won the second. Going into the third round, the referee judged Abrahamian to have lost his second round point, and the Italian wrestler was awarded this point because Abrahamian had fouled and thus deserved a warning. This enabled the Italian to enter into the final without the third round. The Swede was absolutely dissatisfied with the referee's 'revision'. Arguing intensely with the referee, Abrahamian decided to quit. But thanks to exhortation from colleagues, he participated in the subsequent games and won the bronze medal. However, at the award presentation, Abrahamian threw the medal on the floor and left, shocking all those present. (5) The following day, the International Olympic Committee ('IOC') decided to penalise Abrahamian as follows: first, he was disqualified from the Men's Greco-Roman wrestling 84kg; secondly, he was excluded from the XXIX Olympic Games in Beijing in 2008; third, his Olympic identification and accreditation card was immediately cancelled and withdrawn. (6) The first application

On 16 August 2008, the Swedish National Olympic Committee ('SNOC') and the Swedish athlete Abrahamian filed an application with the AHD in Beijing, with Federation Orestes Molina Gonzales ('FILA') as the application respondent. In the application, the SNOC and Abrahamian pointed out that FILA had not applied proper internal appeal procedures and that it had not acted in accordance with the ethical principles of the Olympic movement and the principles of fair play as declared in the Olympic Charter. (7)

The appellants provided several reasons in support of their argument. On the one hand, they argued, it was absolutely unreasonable and inappropriate that the warning issued to Abrahamian at 1 min 41 sec of the second round was opposed by the judge, and that it was repeated after the end of the second round, leading to an entire change within the overall competition result. On the other hand, in procedural terms, the Swedish coach immediately requested a 'video check review' to ascertain whether the warning was justified in accordance with the FILA rules, but his request was denied, thus allegedly violating FILA rules. In short, the application hoped that FILA would establish an internal jury pursuant to the Olympic Charter and FILA's own rules, so that the athlete or any others harbouring suspicions about the result could be granted satisfaction.

As the respondent, FILA did not participate in the tribunal or submit any opinions.

After the hearing and discussion, the Panel summed up its conclusions as follows:

First, the Panel needed to clarify the grounds on which the appellants were appealing. In this instance, the appellants had not challenged the 'warning' which led to the athlete losing, not for his disqualification by the IOC or for being stripped of his medal. Apart from this, 'FILA is required to establish an internal appeal jury according to the Olympic Charter and its rules and to act during competition in response to claims from athletes.'

Second, the Panel found that the grounds below indicated that no internal appeal jury had been constituted, which violated the Olympic Charter and its own rules.

* Firstly, a fundamental principle of the Olympic Charter (8) is: 'Every individual must have the possibility of practising sport, without discrimination of any kind, indicating the Olympic spirit of mutual understanding, friendship, solidarity and fair play.. This emphasises that everyone has the equal right to take part in the Olympic Games, so that 'fair play' has been the general principle, as important as the principles of 'friendship' and 'solidarity'.

* Secondly, the Olympic Charter Rule 49: 'Each IF is responsible for the technical control and direction of its sport at the Olympic Games; all elements of the competitions, including the schedule, field of play, training sites and equipment must comply with its rules ... The holding of all events in each sport is placed under the direct responsibility of the IF concerned.' It conveys that in the specific event, the IF should answer for all the technical arrangements. In this case, FILA should take charge of all the technical arrangements for wrestling. By-law to Rule 49 of the Olympic Charter: 'The necessary technical officials (referees, judges, time-keepers, inspectors) and a jury of appeal for each sport are appointed by the IF concerned, within the limit of the total number set by the IOC Executive Board upon the recommendation of the IF concerned.' This clearly stipulates that each IF should set up an internal jury of appeal.

* Thirdly, Article 36 of the FILA Constitution: 'All FILA members (FILA Bureau members, wrestlers, coaches, referees, doctors and leaders), through their FILA membership, can appeal only to FILA in the event of disputes arising from the current Constitution and all the FILA Regulations or of all sporting conflicts which can arise between them and which they cannot settle amicably.'

* Given all this, the Panel appeared to determine that the requirement of the application is reasonable, which is supported by the Olympic Charter and FILA's own rules; it is necessary and possible to do this. Considering that there were no further requirements, the Panel would not decide '... whether the decision of the judge is reasonable or not', or '... whether it infringes the rights of fair play of the athlete.' FILA was also severely criticised by the Panel for defaulting on the arbitration proceedings.

The second application

In August 2009, after the end of the Beijing Olympic Games, the SNOC and Abrahamian as the appellants again filed an application to the CAS in Lausanne. The appellants asked for a modification of the IOC's decision made on 16 August 2008, from...